At the start of this topic it is important to consider why health and safety should be an important part of any business. There are a number of reasons, and they fall into the following categories:
- Moral- people have a right to leave work safe and sound;
- Business- good safety can improve productivity and efficiency directly or by motivating the workforce;
- Financial- accidents and ill health cost a lot of money;
- Legal – failure to comply with legislation is likely to result in unwanted costs and publicity, both of which are bad for business.
Whilst it is easy to become fixated with the legal perspective, the reality is that legislation has developed as a result of accidents and incidents. Focussing on the moral, business and financial factors achieves better health and safety performance and ensures organisations stay ahead of legislation.
There is a well-known saying “if you think safety is expensive, try having an accident.” This can be a convincing argument for investment beyond the basic moral responsibility.
If someone is injured or becomes ill and is unable to work, an organisation is likely to face some or all of the following costs:
- Legal costs in defence of a prosecution or civil claim;
- Paying overtime or hiring extra people to provide cover for the injured person;
- Lost production;
- Repair costs;
- Loss of reputation;
- Insurance excess;
- Increased insurance premiums.
Other costs can be experienced when an organisation is required to change the way it does business as the result of an accident or non-conformance identified by a regulator or other third party. This can include paying consultants to carry out reviews, buying new equipment or changing to less productive or profitable processes. Whilst it may be argued that these changes are part of the normal business expenditure, ‘distress purchases’ after an event often mean that the organisation has less time to assess their options or choose the most cost effective solution. In the UK, the HSE is able recover its costs when intervening in cases where an organisation has broken health and safety law. Whilst initially limited to a relatively small number of industries, this is being expanded so that it could apply to any organisation.
Whilst organisations have insurance this only covers a relatively small proportion of the total potential costs, and often only covers certain types of event (i.e. insurance may only cover costs above and/or below certain values).
The trouble with the simple financial argument is that before an accident has occurred, the potential costs are hypothetical, whilst the cost for improving safety is very real.
Over the years it has been established that employers and employees have a common law duty of care to each other and to other people. This requires them to exercise reasonable care to the risks of foreseeable injury, death or health problems.
1.3.1 Employers’ duty of care
Employers have a duty of care to provide a safe workplace. They will be liable if someone is harmed because they failed to take reasonable steps to protect against a known risk or one they should have known about.
1.3.2 Employees’ duty of care
Whilst employees have rights they also have a duty to exercise reasonable care in their own actions to avoid harm to themselves and others. This includes co-operating with their employer in the management of risks.
Although there is no employer – employee relationship, self-employed people still have health and safety duties. This includes to themselves and others who may be affected by their work.
However, from October 2015 a change in UK legislation means that for a self-employed person whose work activity poses no potential risk to others then health and safety law will not apply to them.
Reference – The Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons) (Prescribed Undertakings) Regulations 2015 available free at http://www.legislation.gov.uk/uksi/2015/1583/pdfs/uksi_20151583_en.pdf
1.3.4 Contractors and agency workers
Responsibility for the health and safety of contractors and agency workers is not always straightforward because identifying someone’s employer with regard to health and safety is not as easy as identifying who pays their wages. There will typically be a shared responsibility between the contractor company and the company that has engaged the contractor, and the degree to which each is responsible will depend on a number of factors including:
- The degree of control exercised over the worker;
- Who provides tools and equipment;
- Who fixes the place and time of work;
- Whose business it is.
Reference – Health and Safety Executive website at http://www.hse.gov.uk/enforce/enforcementguide/investigation/status-specific.htm
There are two key pieces of UK legislation that drive the whole health and safety legal scene. There are many other acts and regulations, some of which are summarised in Appendix A.
The key pieces of legislation are:
- The Health and Safety at Work etc. Act 1974 (HSWA)
- The Management of Health and Safety at Work Regulations 1999 (MHSW)
Most other legislation builds on these, imposing more specific duties as required by the topic.
1.4.1 HSWA 1974
Under the Act, employers have the following duties:
- Protect health, safety and welfare of employees;
- Provide and maintain safe systems of work;
- Ensure safety in the use, handling, storage and transportation of articles and substances;
- Provide information, supervision and training;
- Provide safe places and environments for work, with safe access and egress;
- Provide adequate welfare facilities and arrangements;
- Produce a written health and safety policy if five or more people are employed at any one time for a single undertaking (see the next chapter for more details);
- Protect people not in their employment that may be affected by their operations;
- Consult safety representatives and establish a safety committee when requested by two or more safety representatives;
- Provide free of charge items required by statutory provisions.
The HSWA 1974 also places duties on employees including:
- Take reasonable care for themselves and others who might be affected by their acts or omissions;
- Cooperate with their employer or other person so far as is necessary to enable them to comply with their own statutory duties and requirements;
- Not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare.
Reference – More information, including a link to the full text of the Act is available free at http://www.hse.gov.uk/legislation/hswa.htm
1.4.2 MHSW 1999
Under the MHSW 1999 regulations employers have duties including:
- Carry out suitable and sufficient risk assessments and record significant findings;
- Apply principles of risk prevention;
- Carry out health surveillance (where appropriate);
- Appoint competent persons;
- Develop procedures where particular dangers may occur;
- Provide comprehensive and relevant information to employees;
- Where two or more employers share a workplace – employers must co-operate with each other;
- Take employees capabilities into account and provide suitable training;
- Assess risks for new and expectant mothers (including women of child bearing age) and take measures;
- Protect young workers because of their lack of experience, awareness of risks and lack of maturity;
Employees also have duties including:
- Use all work items in accordance with the training and instructions that they have been given;
- Inform their employer of work situations that of any shortcomings they recognise in the arrangements for health and safety.
Information about how to comply with regulations is available free at http://www.hse.gov.uk/simple-health-safety/index.htm and http://www.hse.gov.uk/toolbox/index.htm
This is a fundamental concept in UK health and safety law. It is used in the context that all ‘reasonably practicable’ actions need to be taken to reduce risks or that risks need to be reduced to ‘as low as reasonably practicable’ (ALARP).
Reasonably practicable means that action is not required if the cost (financial, time, effort) of that action is grossly disproportionate to the benefit (in terms of risk reduction). In other words, either the cost would be very high for a modest reduction in risk or the risk reduction would be negligible (possibly because a reduction in one area would result in an increase elsewhere).
To determine if risks have been reduced to ALARP it is necessary to answer the following two questions:
- What more could you do to reduce risks further? – Answering this demonstrates that you have considered all options.
- Why have you not done this? Either demonstrate that the option would not reduce overall risk or that that the cost would be grossly disproportionate.
In making an ALARP demonstration it may be found that reducing a risk in one area of the business results in an increase of risk in another, which can be used as a justification to say that the action is not required or appropriate.
Reference – More information about ALARP is available free at http://www.hse.gov.uk/risk/theory/alarpglance.htm. Although the following reference is specifically aimed at the control of major accident hazards, it provides some very useful guidance regarding ALARP (see Section 17) http://www.hse.gov.uk/foi/internalops/hid_circs/permissioning/spc_perm_37
At the end of 2011 the UK Government made proposals to transform the way health and safety was enforced. The stated aim was to change the relationship between business and regulators so that the burden of compliance was reduced. This would be achieved by improved clarity about what organisations need to do to comply, more consistency in enforcement and the concept of ‘earned recognition’ for organisations that are considered to be already compliant.
It is fair to say these proposals have split opinion. On the one hand business generally welcomes the proposals, whilst the health and safety community are concerned that it will reduce standards. Time will tell whether there is any tangible change to the way the UK regulates health and safety. It has already resulted in the introduction of the Independent Regulatory Challenge Panel, which provides the opportunity for an organisation to challenge advice given by regulators that they think is incorrect or goes beyond what is required to control the risk adequately.
The Independent Regulatory Challenge Panel can be contacted at http://www.hse.gov.uk/contact/challenge-panel.htm
Reference – ’The Health and Safety Toolbox – How to Control Risks at Work’ is available free http://www.hse.gov.uk/pubns/priced/hsg268.pdf
More information regarding the UK legal process is shown in Appendix A of this book.